by the United States.

STANDARD OF REVIEW UNDER THE APPA

The APPA requires that proposed consent judgments in antitrust cases brought by the United

States be subject to a 60-day comment period, after which the Court shall determine whether entry

of the proposed Final Judgment "is in the public interest." In making that determination, the Court

may consider:

(1) the competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration or relief sought, anticipated effects of alternative remedies actually considered, and any other considerations bearing upon the adequacy of such judgment; (2) the impact of entry of such judgment upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial.

15 U.S.C. § 16(e). As the United States Court of Appeals for the D.C. Circuit held, this statute

permits a court to consider, among other things, the relationship between the remedy secured and

the specific allegations set forth in the government’s complaint, whether the decree is sufficiently

clear, whether enforcement mechanisms are sufficient, and whether the decree may positively harm

In conducting this inquiry, "[t]he court is nowhere compelled to go to trial or to engage in

of Senator Tunney).1 Rather,

[a]bsent a showing of corrupt failure of the government to discharge its duty, the Court, in making its public interest finding, should . . . carefully consider the explanations of the government in the competitive impact statement and its responses to comments in order to determine whether those explanations are reasonable under the circumstances.

666 (9th Cir. 1981)); see also Microsoft, 56 F.3d at 1460-62. Case law requires that

[t]he balancing of competing social and political interests affected by a proposed antitrust consent decree must be left, in the first instance, to the discretion of the Attorney General. The court’s role in protecting the public interest is one of insuring that the government has not breached its duty to the public in consenting to the decree. The court is required to determine not whether a particular decree is the one that will best serve society, but whether

1 See also United States v. Gillette Co., 406 F. Supp. 713, 716 (D. Mass. 1975)(recognizing it was not the court’s duty to settle; rather, the court must only answer "whether thesettlement achieved [was] within the reaches of the public interest"). A "public interest"determination can be made properly on the basis of the Competitive Impact Statement andResponse to Comments filed pursuant to the APPA. Although the APPA authorizes the use ofadditional procedures, 15 U.S.C. § 16(f), those procedures are discretionary. A court need notinvoke any of them unless it believes that the comments have raised significant issues and thatfurther proceedings would aid the court in resolving those issues. See H.R. Rep. No. 93-1463,93rd Cong., 2d Sess. 8-9 (1974), reprinted in 1974 U.S.C.C.A.N. 6535, 6538.

20 the settlement is "within the reaches of the public interest ." More elaborate requirements might undermine the effectiveness of antitrust enforcement by consent decree.

Bechtel, 648 F.2d at 666 (emphasis added) (citations omitted)2

The proposed Final Judgment, therefore, should not be reviewed under a standard of whether

it is certain to eliminate every anticompetitive effect of a particular practice or whether it mandates

certainty of free competition in the future. Court approval of a final judgment requires a standard

more flexible and less strict than the standard required for a finding of liability. "[A] proposed

decree must be approved even if it falls short of the remedy the court would impose on its own, as

long as it falls within the range of acceptability or is ‘within the reaches of public interest.’" United

consent decree even though the court would have imposed a greater remedy).

Moreover, the Court’s role under the APPA is limited to reviewing the remedy in

relationship to the violations that the United States has alleged in its Complaint, and does not

authorize the Court to "construct [its] own hypothetical case and then evaluate the decree against

that case." Microsoft, 56 F.3d at 1459. Because the "court’s authority to review the decree depends

entirely on the government’s exercising its prosecutorial discretion by bringing a case in the first

2 Cf. BNS, 858 F.2d at 463 (holding that the court’s "ultimate authority under the [APPA]is limited to approving or disapproving the consent decree"); Gillette, 406 F. Supp. at 716(noting that, in this way, the court is constrained to "look at the overall picture nothypercritically, nor with a microscope, but with an artist’s reducing glass"). See generallyMicrosoft, 56 F.3d at 1461 (discussing whether "the remedies [obtained in the decree are] soinconsonant with the allegations charged as to fall outside of the ‘reaches of the publicinterest’").

21place," it follows that "the court is only authorized to review the decree itself," and not to

"effectively redraft the complaint" to inquire into other matters that the United States might have but

did not pursue. Id. at 1459-60.

VIII.

DETERMINATIVE DOCUMENTS

There are no determinative materials or documents within the meaning of the APPA that

were considered by the United States in formulating the proposed Final Judgment.